Dead Trademarks

[strongvis]

Just reading through other threads. I'm confused on the issue of dead trademarks. Can someone enlighten me a bit? I have a domain, and the word combo I also plan to use as a product. I have a plan for its use and wouldn't you know it someone before me had the same plans but either went bankrupt or just decided to not use the mark any longer, so can I resume where they left off??

[WildCard]

Why not pay one of the lawyers on the board to search and advise? I can't imagine it costing more than $200 (am I clueless?) since I imagine that they have their clerks do all the searching.

Then you know for sure and don't have to worry about someone coming after your product's domain name.

-WC-

[strongvis]

search is done wildcard. what would I need to hire someone to search for? I know there's a mark I know it's dead. Now the question is CAN I USE IT and secondly can I "take it over" by applying for the same old mark.

[jberryhill]

You "know" the mark is dead? Or you just know the registration or application (since most folks here don't make any distinction) says "dead" at uspto.gov for some particular alphanumeric sequence corresponding exactly to your domain name, but not taking into account homophonic or other potentially confusing variations?

You know the company went bankrupt or stopped using the mark? How long ago? How do you know they stopped using the mark? Or did they simply let their registration or application lapse?

[strongvis]

Here's what I know:
I have a 2 word .com
Those 2 words w/o .com WERE trademarked.
The Tm says "dead" and under the check status it says "Abandoned: Applicant failed to respond to an Office action."
The mark was abandonded in 1997 (im not sure why they'd even still have it in the database)
I know there is no homophonic variations tm'd as I checked out the few possible
I don't know what the company is doing now. That was my point. TThey screwed up and didnt renew or failed to respond or whatever. SO they dont own the tm right? and I can request the trademark right??

Here's their history
1997-09-27 - Abandonment - Failure to respond

1997-01-06 - Non-final action mailed

1997-01-03 - Case file assigned to examining attorney


So, they may still be around but they don't have any claim to this mark right?? or wrong? and can I now create a product name it this and register a mark??

[jberryhill]

"Those 2 words w/o .com WERE trademarked."

No, they were not registered as a trademark, and the status information you posted is clearly that of an application which was never registered.

There are lots of things in the uspto trademark database, not all of them are, or ever were, registered trademarks. You seem to be looking at a record for an abandoned application.

What kind of application was it? Was it based on use or intent-to-use? If it was an ITU, then was a statement of use ever filed?

"can I now create a product name it this and register a mark??"

For all we know, that's what THEY thought before their application was refused registration and they failed to respond to the refusal. Are the two words generic or descriptive of the goods or services for which you intend to use the mark? Are the two words obscene?

They may still be around, and they may still have a claim to the mark. Just because they may have abandoned their registration application does not mean they quit using the mark.

Please consider the questions above to be rhetorical indications of the kinds of things an attorney would want to know. I'm not suggesting that you answer them.